How 1969 error cost Prisons and residents Sh9b land in Kitale

Kenya Prisons and thousands of families in Kitale must figure out how to compensate a grandson of a white settler or vacate 4,941 acres following a fatal blunder dating back to 1969.

This is after Land Court Judge Christopher Nzili found that the decision to occupy the land, made in 1968, and the subsequent subdivisions, were illegal.

For this, the Judge ordered the Commissioner of Prisons to pay Sh9.6 billion for utilising the property as a public utility. At the same time, the judge directed that they talk to the grandson of the initial owner to regularise their title or face eviction.

He pointed out the blunder having emanated from the then commissioner of land on September 10, 1969.

“The acts of the first respondent to write to the third respondent by a letter dated September 10, which was received or acknowledged by the third respondent on September 10, 1969, authorising or notifying or giving the third respondent a go ahead to take over, occupy, use, develop, drive away and displace the petitioner’s late father and his family out of occupation, use and ownership of the suit parcels of land, on a purported purchase or surrender of the same to the government through his alleged authorised agent, for use by the Prison Department, was, remain and amounts to breach of the petitioner’s late father’s and family’s constitutional rights under Articles 21, 21(3), 27 and 40 of the Constitution,” ruled Justice Nzili.

The person behind the prison and Kitale residents’ woes is Karl Wehner Claassen. In a case that has been in court since 2015, he sued the commissioner of lands, registrar of titles, commissioner of prisons, the Attorney General, Kipagenge of Kalenjin Estates Limited, Noah Wekesa and the County Government of Trans-Nzoia, seeking Sh22 billion in compensation and revocation of titles issued to them and eviction.

This is why. Between 1942 and 1945, he stated that his grandparents, GH Claseen and MC CLaseen, bought from Evelyn Florence Mary Fraser, Beryl Violet Marshall, Dr Ganz and several other people four properties measuring 400 acres, 298 acres, 857 acres, and 304 acres, popularly known as Kandy Farm Properties.

Wehner told the court that his grandfather died in 1962, after which the Kandy firm was transferred to his father, Nicolaas Hendrik. He subsequently purchased 2,181 acres, known as the Pilkem Estate.

He stated that they enjoyed peaceful occupancy and farming until August 29, 1968, when the government, through the Commissioner of Lands, informed Nicolaas that it intended to acquire the Kandy farm for the Kenya Prisons.

According to him, his father declined the offer, arguing that he had no intention of selling it, which did not sit well with the then government.

He said that the land was forcibly taken and they were evicted in 1969. Wehner claimed his late father never authorised anyone to sell or transfer the land to prisons.

The man argued that he was not aware of any gazette notice requiring his family to surrender their land, nor was there any court order requiring to do so.

Wehner said his family had no other option but to relocate to South Africa. The man was armed with the titles of the parcels of land a letter of intention from the commissioner.

In their responses, they denied Wenher’s narrative. The AG, Prisons, and the commissioner of lands alleged that 400 acres were initially leased to John Joseph MCDermott Scally for 999 years on September 14, 1922, and that he transferred the same to Mary on May 21, 1926.

The court heard that the land was taken up by Arthur Arnold Stanley Wartnby and later to Standard Bank of South Africa Limited, Kitale. It was allegedly discharged on September 23, 1926.

Further, they stated that the land was then transferred to Wehner’s grandfather on January 18, 1945 and later to his father who then charged it for a loan to Standard Chartered on November 26, 1945.

According to the State, the head title was surrendered back to the government for Sh340,000 on June 30, 1969. For the other properties, it was alleged that Hendrick surrendered two at Sh680,000 on the same date, while the one occupied by Kapengenge was transferred on August 26, 1970 but for an unknown amount.

They asserted that on the contrary, there were negotiations between the government and Wehner’s father through his lawyer R.P.F. Lindsell who was also the commissioner of land up to June 20,1969 where he relinquished his rights upon payment of Sh340,000. Lindsell is also deceased.

They urged the court to dismiss the case as it had no powers to entertain a case which involved transactions that happened five decades ago and about persons who have since died.